Supreme Court nominee Elena Kagan on hate speech and pornography (aka the First Amendment)

Chris Moody Contributor
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Supreme Court Nominee Elena Kagan has a history of showing keen interest in devising ways to shape and increase regulation of speech, particularly hate speech and pornography, a review of her public comments and writings show.

As Politico reported Friday, Kagan articulated her interest in re-examining the First Amendment and how or whether it should protect hate speech and pornography during a 1993 legal seminar at the University of Chicago. Politico screened a tape of Kagan’s talk at the event, which included about 700 legal scholars, attorneys and activists, and reported that Kagan took the side of those seeking legal restrictions on certain types of pornography, notably that depicting violence against women:

“We should be looking for new approaches, devising new arguments,” Kagan declared, according to video of the event reviewed by Politico. She seemed to count herself among “those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.

Kagan hinted that there may be constitutional means by which anti-pornography activists could argue in favor of enhanced government regulation.

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence,” Kagan said, according to the Politico report. “Such statutes may still be constitutional.”

The Chicago conference was not the first or the last time Kagan would explore interpretations of the law that could strengthen statutes against hate speech and pornography. Kagan explored these themes further in a essay published the same year in the University of Chicago Law Review.

“The question I pose is whether there are ways to achieve at least some of the goals of the anti-pornography and anti-hate speech movements without encroaching on valuable and ever more firmly settled First Amendment principles,” she wrote.

Kagan went to great lengths to say that her overview of these methods was just that – an overview, not a prescription – and she outlined ways the government could enforce laws restricting pornography and hate speech.

First, Kagan reinforced a need to focus on conduct instead of words when deciding on cases that interpret the reach of the First Amendment. On pornography, Kagan said it was important to enforce laws that punished conduct that perpetuated the degradation of women, such as pimping and prostitution. The same would apply for actions that result from hate speech. Regarding hate crime laws, Kagan said she found no fault with the previous court rulings that upheld laws making penalties tougher on those who commit crimes based on the “race, religion or other listed status” of the victim.

Second, Kagan said the government could curtail hate speech and certain forms of pornography by increasing restrictions and penalties on actions motivated by speech, regardless of whether the speech were directed toward groups already protected by hate speech laws. “One potential course is to enact legislation, or use existing legislation, prohibiting carefully defined kinds of harassment threats, or intimidation, including but not limited to those based on race and sex,” she wrote.

Lastly, and perhaps most problematic, Kagan explored the idea of widening the definition of the term “obscenity” so the government could regulate images portraying violent acts of sex and other forms of pornography.

While her comments suggest a heavy interest in the topic, her 1993 essay on free speech indicated that the pursuit of free speech regulation — both for hate speech and pornography — was probably a frivolous endeavor.

“[M]y view is that efforts to regulate pornography and hate speech not only will fail, but also should fail to the extent that they trivialize or subvert this principle,” she wrote, referring to viewpoint neutrality, the idea that government cannot restrict speech because it disagrees with its message.

Based upon her public speeches and scholarly writings, legal scholars said they were not certain how she would rule as Supreme Court justice. “It’s hard to tell for sure,” wrote UCLA law professor Eugene Volokh in a May review of her legal and scholarly writings.

Whether she would capitalize on an opportunity to weaken laws protecting hate speech and pornography while on the court, Volokh said he was skeptical Kagan would rule against First Amendment rights.  “I likewise see little interest in moving the law much,” he said of her previous written works. “[I]t sounds like most that she would tolerate is a restriction within this unprotected category of fighting words: I don’t think she would endorse restrictions on allegedly racist or otherwise bigoted speech outside this traditionally unprotected category.”

But with pornography, Volokh said Kagan could be more willing to rule on cases that would increase restrictions.

“[W]hile she might tolerate some restrictions on pornography — probably limited to pornography that depicts violent sex — it seems likely that she won’t go much beyond (and likely not at all beyond) restrictions on pornography that already fits within the ‘obscenity’ exception,” he said.

While Kagan’s ability to act upon her convictions as a member of the Supreme Court may be curtailed by her position on the court, her writings and speeches reveal that she does hold a strong personal affinity toward efforts to regulate what she referred to as “low-value speech.”

“Such efforts will not eradicate all pornography or all hate speech from our society,” Kagan wrote in 1993. “But they can achieve much worth achieving.”

The Senate began its confirmation hearing for Kagan Monday, and the final floor vote is expected by the end of July.